Cardwell v Chief Executive, Department of Lands [1995] QLC 50

LAND COURT BRISBANE 29 JUNE 1995 Re: Appeal against an Annual Valuation Valuation of Land Act 1944 Local Government: BCC Kedron (AV93-369) Kenneth John and Marcia Cardwell v. Chief Executive, Department of Lands (Hearing at Brisbane) D E C I S I O N This appeal was instituted against the determination of the Chief Executive, Department of Lands, following an objection made by the appellants to the value applied to a parcel of land situated at 69 Flockton Street, Stafford Heights. The valuation of the Chief Executive is in the amount of $78,000, whilst the appellants contend for a valuation of $60,000. The valuation is effected as at 31 March 1992. The property comprises an area of 1,052m2 and has a single unit residence erected on it. The block is of irregular shape being narrower at the front than at the rear, has a south-easterly aspect and an easy to moderate cross-slope to the south-east. Adjoining the subject land on its eastern boundary is a neighbourhood park which fronts onto the corner of Flockton Street and Lanchester Street. A sewerage main severs the property approximately 6 metres in from and running approximately parallel to the eastern boundary. Mr Cardwell appeared and gave evidence on behalf of the appellants. The grounds of appeal were : 1.Sewer main traverses the property making approx. 50% unsuitable for building upon. 2.The property fronts onto a major thoroughfare. 3.The valuation not relative to other properties in the area also the valuation increase. [1995] QLC 50 -- 1 of 5 -- 2 It is worth mentioning at the outset that there is a statutory onus placed upon the appellants to prove the grounds of the appeal. This is provided for in section 56(2) of the Valuation of Land Act 1944: "Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated, and the burden of proving any and every such ground shall be upon the owner." Mr Cardwell's concern with the presence of the sewerage main is twofold. The first of these is based on his understanding that the sewerage main cannot be built over, thereby limiting the available area of the site for construction purposes to about 50 per cent. There was evidence that the residence currently constructed on the subject land is set back from the sewerage line. The second point with respect to the sewerage line raised by Mr Cardwell is that there is a "jump up" located along this line. He explained that this "jump up" could be accessed by the Council at any time to construct sewerage into the adjoining park. It appears that the Council has not accessed the "jump up" to this point, and given that Mr Cardwell describes the adjoining park as being of allotment size, I would express some doubt that the supply of sewerage to the park would be a matter that the Council would be inclined to undertake. Evidence for the Chief Executive was provided by Mr Nicholas Charles Hughes, a registered valuer employed by the Department of Lands. Mr Hughes did not carry out the original valuation in this matter but agrees with the figure of $78,000 determined by the Chief Executive. On the matter of the sewerage main, Mr Hughes gave evidence that he had made inquiries of the Council and was advised that such a main could be built over as long as the piers were not constructed on top of the line itself and a certain height requirement was adhered to which would allow access to the sewerage main. The structure could, in effect, straddle the main. Mr Hughes agreed, under cross-examination, that such a construction method would be more costly than more common house construction methods. In a statement tendered to the Court, Mr Hughes included a sketch comparing the area available for construction on the subject land with that available on the adjoining Lot 159 on which the Chief Executive's determination is $65,000. This was -- 2 of 5 -- 3 most useful in that it indicated quite clearly that the subject block had substantially more area upon which to build a house than did Lot 159, whether one constructed the house over the sewerage main or not. Construction over the main would yield an extra 40 per cent of land for construction purposes than would lot 159, whereas construction up to but not over the main would provide about 25 per cent more area. It is quite clear from the evidence that Mr Hughes did have regard to the existence of the sewerage main and the precise impact that it would have on the highest and best use of the land in an unimproved state. Mr Cardwell's second concern is with that of traffic noise. He readily conceded in oral evidence that Flockton Street is not a "major thoroughfare", as it was described in his grounds of appeal. He said that the traffic was mainly local but that during peak periods traffic did become heavy as motorists used Flockton Street to travel between major roads. Mr Hughes agreed with this evidence and further agreed that Hagman Street to the rear of the subject land was a quieter street than was Flockton Street. In pursuing the ground of appeal concerning relativity with other valuations, Mr Cardwell first of all gave evidence concerning the nuisance aspect of the park which adjoins the subject land. He explained that particularly during school holidays "hoons" visit the park and that, on occasions, Mr Cardwell has had to call the police in an attempt to address the problem. He explained that as the park is small, the nuisance problem is accentuated and its two-street frontage also contributes to the level of nuisance. Mr Hughes did not claim any knowledge of the particular nuisances referred to by Mr Cardwell, but said that he was not surprised that such nuisances did take place. His view concerning the park was that it was an advantage to the subject land in that, firstly, it contains trees and large shrubs planted in the area adjoining the boundary to the subject land and provided an aspect to the land which could not be built out. Mr Hughes' evidence was that purchasers in the marketplace would pay a premium for proximity to such a park. I understand Mr Cardwell's evidence and I accept what he says about the -- 3 of 5 -- 4 nuisance which is sometimes generated by visitors to the park. I have, however, the expert evidence of Mr Hughes with respect to the effect that such a park would have on market value and there being no opposing expert evidence from the appellant, I accept Mr Hughes' opinion in this matter. I turn now to the appeal on the grounds of relativity. Given the narrowness of the grounds of appeal, no sales evidence was tendered by either party however, evidence of values determined by the Chief Executive on adjoining blocks in Flockton Street and blocks at the rear in Hagman Street was provided by Mr Hughes. I have already referred to Lot 159 which Mr Hughes referred to in demonstrating that the area available for construction on the subject land is superior. Lot 159 has an area of 674m2 only compared with the 1,052m2 of the subject; shares the same frontage to Flockton Street as the subject with the attendant road noise; and does not have the adjacency to the park which I have found is,, overall, an advantage to Lot 158. In Hagman Street at the rear of the subject, Lots 198, 199 and 200 have determined values of $66,000, $66,000 and $70,000, respectively. These blocks have areas of 617m2, 617m2 and 703m2, respectively, and slope away from Hagman Street. Mr Hughes described this as a disability from a valuation perspective. Each of these blocks has the advantage of fronting onto a quieter street than does the subject, but does not possess adjacency to the park. I have no difficulty in accepting Mr Hughes' evidence that those blocks in Hagman Street and Lot 159 in Flockton Street are determined in the correct relationship with the subject land. One other determination of the Chief Executive deserves mention. This is Lot 160 in Flockton Street which has a determined value of $67,000. Its area is the same as Lot 159, however, it is valued at $2,000 higher. Mr Cardwell challenged the correctness of this valuation and Mr Hughes explained that the difference between Lots 159 and 160 was that 160 was more elevated and had a better outlook, hence the higher value. This reasoning appears to be sound, however, I should point out that even if it was the case that the valuation for Lot 160 was considered to be wrong, this -- 4 of 5 -- 5 would not assist the appellants. In Wilson v The Chief Executive, Department of Lands (unreported 17/2/94) the Court said that any error found in relativity was not sufficient to put the valuation process in doubt. I would add that the task that an appellant undertakes is to prove, within his grounds of appeal, that the valuation of the Chief Executive is wrong. The High Court case of Brisbane City Council v The Valuer-General (1978) 5 QLCR 283 at 303 provides the guide as to what is required for an appellant to show that the Chief Executive's valuation is wrong: "The question then is whether a court on appeal is bound to accept the Valuer-General's figure as correct unless it is positively established that the true value is lower, or whether it is enough to show that the value was reached as the result of an error in principle. In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted." I have considered the evidence of the appellants carefully and have equally paid attention to the evidence from Mr Hughes, both given orally and in the form of his statement. I find that the appellants have failed to convince me that the valuation of $78,000 was arrived at based on a wrong principle or on a serious error of fact. Accordingly I dismiss the appeal and affirm the decision of the Chief Executive. RP SCOTT MEMBER OF THE LAND COURT -- 5 of 5 --